One Unlawful Entry Supports Only One Burglary Charge, Even When There are Multiple Assaults

State v. Beane, Minn.Ct.App., 12/30/2013.  Don’t look a gift horse in the mouth.  F.E. and Mr. Beane returned after a party to F.E.’s apartment, 202.  One surmises that an amorous evening may have been anticipated, but things didn’t turn out that way.  Instead, Mr. Beane assaulted F.E. She fled to a neighbor’s apartment, # 204.  Mr. Beane broke into that neighbor’s apartment and continued the assault on F.E., and threatened to kill one of the other occupants of # 204, J.S.  F.E. fled the neighbor’s apartment and returned to her own place.  Mr. Beane pursued her there as well and renewed the attack one last time (and threatened to kill everyone as well.)

Now, follow this.  The state charged Mr. Beane with two counts of first degree burglary, with the assaults of F.E. and J.S. as the underlying crimes.  That is, the state focused on Mr. Beane’s behavior over in apartment 204.  (There was an additional domestic assault charge of F.E., over in her apartment, 202, but no matter.) 

The state did not charge Mr. Beane with a separate burglary of F.E.’s place, when he pursued F.E. from apartment 204 back to apartment 202 and renewed his assault on her. 

The jury convicted him of both burglaries on the state’s theory of one entrance followed by two assaults supports two burglaries.  Now, for sure, Mr. Beane could be charged with and convicted of first degree burglary and the underlying assaults.  Minn.Stat. 609.035; State v. Holmes, 778 N.W.2d 336 (Minn. 2010).  But, this does not mean that Mr. Beane could be convicted of two burglaries just because he assaulted two people.  Chief Judge Cleary says that the supreme court said just that back in 1986, State v. Hodges, 386 N.W.2d 709 (Minn. 1986):

[T]he burglarious entry of one dwelling should justify only one burglary conviction. Under this approach, the commission of other crimes, such as assault or robbery, against the occupants of a dwelling after entry is made may be additionally punished with convictions and sentences on the basis of one extra conviction and sentence per victim of the other crimes, but only one burglary conviction would be allowed.

Back to the gift horse.  There’s this ominous footnote:

We observe that under Hodges, Beane could have been charged with an additional count of assault for each individual he assaulted in K.B.’s apartment. We also note that the multiple-victim exception may have supported additional assault charges for each of the victims he attacked or threatened while in F.E.’s apartment, and that those assaults were apparently aggravated by the presence of children.  Additionally, Beane’s pursuit of F.E. back into her own apartment could potentially have supported a first –degree -burglary charge because this second entry was undoubtedly made without F.E.’s consent, and because the facts support the conclusion that Beane committed additional crimes against additional victims after this unconsented entry.

Now, on remand, Mr. Beane can’t receive an aggregate sentence more onerous than the original aggregate sentence.  But it’s not all that clear whether the state can go back and pick up all those other potential charges so nicely delineated in that footnote that have never been lodged against Mr. Beane.

Accomplice Liability Jury Instruction Survives Challenge; Murder Conviction Upheld

State v. Bahtuoh, Minn.S.Ct., 12/26/2013.  A jury convicted Mr. Bahtuoh of multiple offenses and the district court sentenced him to life with possibility of release for first degree felony murder while committing a drive-by shooting for the benefit of a gang.  Mr. Bahtuoh drove a Mr. McGee over to a Mr. Parker’s residence.  Mr. Bahtuoh called out for Mr. Parker and as Mr. Parker approached the car Mr. McGee shot him multiple times.  The state’s theory of liability was that Mr. Bahtuoh was both a principal and an accomplice.  The state’s proof, however, only established Mr. Bahtuoh’s accomplice liability.

Justice Stras affirms the conviction and sentence, rejecting a number of legal challenges along the way.  The court concluded that there was sufficient circumstantial evidence to support the conviction, under the two-step rubric the court adopted a few years back in State v. Anderson, 789 N.W.2d 227 (Minn. 2010).  

This gets to the heart of the case, which was the instruction on accomplice liability.  Justice Stras first poses the question incorrectly by asking whether the district court misstated that law.  Well, the district court did; no one really took issue with that.  The real question was how to put a square peg into a round hole.  With some gymnastics worthy of Cirque du Solei the justice finds a way to do just that.

Some five years ago the court announced what the state had to prove: that a defendant knew that his alleged accomplices were going to commit a crime, and that a defendant intended his presence or actions to further the commission of that crime.  State v.Mahkuk, 736 N.W.2d 675 (Minn. 2007).  No one, apparently read that opinion because just last year the court had to repeat the requirements in State v. Milton, 821 N.W.2d 789 (Minn. 2012).

Even so, the district court told Mr. Bahtuoh’s jury that he had to have intentionally aided, advised, etc., the other person – Mr. McGee – to commit the murder.  Further, the district court told the jury that Mr. Bahtuoh had to have voluntarily associated himself with the “criminal venture”, do something to help this criminal venture succeed.  And, the court told the jury that Mr. Bahtuoh’s presence at the crime scene was enough “if it is done intentionally and if it also aids or encourages the commission of the crime to any degree.”  Under this instruction, Mr. Bahtuoh’s intentional presence with Mr. McGee is enough for accomplice liability even if that presence only unwittingly aided or encouraged the commission of the crime.

Justice Stras was able to get out of this conundrum by saying that two wrongs make it right.  This is because the trial court also told the jury – incorrectly - that whether acting alone or intentionally aiding and abetting another Mr. Bahtuoh had to have acted with intent to kill Mr. Parker.  By trying to combine an instruction on both principal and accomplice liability the trial court totally botched both, but that’s apparently okay.  Somewhere in there – when the court looks at the instructions “as a whole” - can be discerned the necessary word fragments which, when rearranged years after the trial, recite the correct law.  Law by cryptogram.

Mr. Bahtuoh also complained that his trial attorney provided ineffective assistance of counsel by telling the jury repeatedly during opening statement that Mr. Bahtuoh would testify, but then he didn’t testify.  It turns out that so long as defense counsel can show that during his opening statement he reasonably expected his client to testify it’s not ineffective then not to put him up on the stand.  And – there’s more – when your client has already sung to both the police and the grand jury, well, where’s there not a reasonable expectation of yet another performance to the petit jury?

Shooting Deer From a Deer Blind Is “Pursuing” Deer For Which A Hunter Needs a License

State v. Schmid, Minn.Ct.App., 12/23/2013.  Every so often the court of appeals pursues the finer nuances of deer hunting.  Last time out it had something to do with pumpkins.  Read here.  This go round it’s about stalking.

A game warden found Mr. Schmid in a deer blind in a deer-hunting area during deer hunting season.  He was dressed in blaze orange clothing.  He was armed with a shotgun loaded with deer slugs.  He was not in possession of a license to hunt deer.  He said that he didn’t need a license because hanging out in a deer blind was not “pursuing” game without a license, which is what the statute prohibits.

Actually, the statute, Minn.Stat. 97B.301, subd. 1 says that you can’t “take deer without a license.”  As lawyers are wont to do, “taking” is a defined term with a laundry list of meanings:  pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, netting, and attempting to do all those things.  Mr. Schmid’s pursuit of the meaning of “pursuing” was to say that it meant, when hunting deer, a foot chase, never mind that most likely very few, if any, humans can run long enough at forty miles an hour through thick and thicker after a deer – never mind about all that, he said hanging out in the deer blind didn’t count. 

On the way to rejecting this interpretation the court of appeals perused what is apparently seven centuries of the development of the “nuanced verb” of pursuing.  Thomas Jefferson said that we should “pursue” happiness.  Athletes “pursue” championships.  A “young romantic” – they don’t say anything about “not so young” romantics - “pursues” a mate.  A police officer “pursues” both her career and a suspect.  A game bird hunter pursues birds by having a dog flush the birds out in the open to be shot at by, one presumes, a stationary marksman.  Turkey hunters, it turns out, have their own “nuanced” pursuit of turkeys.  First you creep up on the flock, then run into the middle yelling and whooping.  The turkeys flee in pursuit of their lives.  The hunter then settles in to await their return so as to shoot them when they do.  And so on.

Mr. Schmid was “pursuing” deer.  Pay the fine.

12/18/2013: No Published Supreme Court Criminal Opinions

12/16/2013: No Court of Appeals Published Criminal Opinions

Petitioner Not Entitled to Post Conviction on Basis of Newly Discovered Evidence

Miles v. State, Minn.S.Ct., 12/11/2013.  Mr. Miles just can’t catch a break.  Back a while ago he filed his third post conviction petition, which he supported with an un-notarized statement from a significant witness, the gist of which could be characterized as new evidence.  The courts threw out the petition because this statement wasn’t a sworn affidavit.  Miles v. State, 800 N.W.2d 778 (Minn. 2011).

So, Mr. Miles went back and got the statement notarized and filed another post conviction petition.  The now notarized statement put the murder for which Mr. Miles had been convicted and on which he is serving time an another fellow.  The post conviction court first determined that this petition was not time barred because it met the limitations exception for newly discovered evidence.  Minn.Stat. 590.01, subd. 4(b)(2).  The post conviction court held an evidentiary hearing, after which it denied the petition.  The court found the testimony of the guy who provided the now notarized statement to be “poppycock,” applying the Rainer v. State, 566 N.W.2d 692 (Minn. 1997), test for granting a new trial on the basis of new evidence. 

The Rainer test requires that petitioner prove he is entitled to relief by only a fair preponderance of the evidence.  The state argued that the burden of proof should be “clear and convincing,” borrowing from the limitations provision in Chapter 590.  Chief Justice Gildea sides with the trial court on this one and says that the Rainer standard controls.  Applying that analysis the court upholds the post conviction court’s denial of the petition.

Court Declines to Stay Appeal From Denial of Post Conviction Petition in Order to Permit Pursuit of Second Post Conviction Petition

Frisch v. State, Minn.Ct.App., 12/9/2013.  Mr. Frisch has been trying to appeal his conviction for gross misdemeanor driving while impaired.  He filed an untimely notice of appeal, which the court of appeals promptly threw out.  Mr. Frisch then filed a post conviction petition, saying that the state presented insufficient evidence and that the trial court had erroneously instructed the jury.  The post conviction court promptly threw that out.  Mr. Frisch appealed that dismissal, on time this time.  Right before his appellate brief was due he asked the court of appeals to stay that appeal so that he could go back and file a second post conviction petition in which he wanted to say that his trial attorney had been ineffective in botching both the direct appeal and the first post conviction petition.

Mr. Frisch thought that there was a rule for that, Minn.R.Crim.P. 28.02, subd. 4(4).  That rule says that you can ask the appellate court to stay the appeal so that you can go back to the trial court and commence a post conviction petition.

The court of appeals reads this rule to apply to litigants who are still pursuing a direct appeal.  The court concludes that the rule does not permit a post conviction litigant to stay an appeal of the denial of a post conviction petition in order to go back and commence a second one.

Just why Mr. Frisch’s position is different from that presented in Barnes v. State ,768 N.W.2d 359 (Minn. 2009), isn’t clear since it didn’t come up.  After Barnes lost a post conviction petition, which he handled pro se, he appealed and then hired counsel.  His attorney – okay, it was me -  then asked the supreme court to stay the appeal so that he could return to the post conviction court either to seek reconsideration of the initial petition or to file a second one.  The supreme court granted that stay and let Mr. Barnes go back and slug it out some more in the post conviction court.  Although Barnes only asked for reconsideration the stay had been granted for both purposes.

Untimely Service Upon State Public Defender, in State Sentencing Appeal, of Notice of Appeal Defeats Court’s Jurisdiction to Hear Appeal

State v. McKinney, Minn.Ct.App., 12/9/2013.  Mr. McKinney pleaded guilty to domestic assault by strangulation and got a stayed sentence.  The state appealed the sentence because they thought that Mr. McKinney had a higher criminal history score and should have gone to prison.  Because the state screwed up the procedural steps required for such an appeal, the court of appeals dismissed it.

Specifically, the state failed to serve the notice of appeal on the state public defender.  The court of appeals determined that such service is jurisdictional.  Because the state was three days late in serving the notice on the state public defender, the court of appeals had no jurisdiction to her the appeal.

Obstructing Legal Process Requires Proof of–Well–Obstructing “Process”

State v. Pederson, Minn.Ct.App., 12/9/2013.  The state charged Ms. Pederson with fourth degree assault of a peace officer, and with obstructing legal process.  Here’s what was going on.  The cops were at Ms. Pederson’s place on a report, apparently from a neighbor, of loud yelling.  Ms. Pederson answered the door when the officers knocked on it and stepped out into the hallway.  She tried to shut the door but an officer put his foot in the doorway to prevent it.  Ms. Pederson was apparently intoxicated, upset, and she had a bit of blood on her finger.  She told the cops that she was home alone but the officers could hear “loud rustling” – a dog perhaps? – from inside the apartment so they tried to go inside.  Ms. Pederson tried to block their entry and she got into it with the officers.  One officer managed to get into the apartment; the other one fared not so well.  In the scuffle Ms. Pederson kicked the other officer in the head, behind the ear.

On appeal from her convictions of these two gross misdemeanors Ms. Pederson argued that the state’s evidence was insufficient to support those convictions.  She said that the kick to the officer’s head was just as likely an accident, an alternative rational hypothesis.  The court of appeals wasn’t buying that argument and affirmed that conviction.

On the obstructing charge, Ms. Pederson said that she did not commit conduct prohibited by subdivision (1) of that statute.  That subdivision requires proof that she “obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense.”  Minn.Stat. 609.50, subd. 1(1).  The trial court had found her guilty under this subdivision because of her conduct of continuing “to fight, grab, and physically obstruct [the officers’] entry into her apartment with her body.” 

The court focuses in on “process,” both “legal process” – like serving a subpoena – and the “process” of apprehending someone.  Just being a pain in the ass doesn’t make it “obstruction” under subdivision 1(1).  When Ms. Pederson assaulted the officer, the police weren’t serving process on her or another, there was no legal action pending, and they were not attempting (yet) to arrest her or another.  Ms. Pederson may have made the cops’ job more difficult, but she wasn’t “obstructing” any “process”. 

Omission of Instruction on Element of Offense is Subject to Prejudice Review, Which on These Facts, Entitles Defendant to New Trial

State v. Watkins, Minn.S.Ct., 12/4/2013.  In this role reversal of an Opinion, with the conservatives seemingly ruling in the defendant's favor and the lone moderate ruling against him, all is not what it seems.  In fact, this is a pernicious Opinion in which Justice Dietzen throws a bone to the defense by generously interpreting an element of an offense that no longer exists.  The court says that the "knowingly violates" element of felony violation of a DANCO - an element now removed from the statute - requires proof of subjective knowledge. 

The district court issued a Domestic Abuse No Contact Order (DANCO) in favor of Mr. Watkins’ girlfriend but the clerk misspelled the name of the protected person and listed an incorrect date of birth.  Thereafter, Mr. Watkins telephoned the protected person and sent her a Valentine’s greeting.  The state charged him with felony violations of the DANCO.

Mr. Watkins served up a defense against the charge by saying that because of the misspelling of his girlfriend’s name and the incorrect date of birth he didn't really know that he could neither call up his girlfriend nor send her a Valentine's Day card.  The trial judge neglected to instruct the jury that it  had to find that Mr. Watkins "knowingly violated" the DANCO.  The jury convicted him just the same.

The court of appeals reversed that conviction and granted Mr. Watkins a new trial.  That court said that the omission of an instruction on an element of the crime was a structural error that entitled Mr. Watkins to a new trial – a structural error that required no further analysis.  Read about that here.  Justice Dietzen, writing for five members of the court, gave Mr. Watkins his new trial but not for the reasons articulated by the court of appeals.  Justice Dietzen said that the omission of a jury instruction on an element of the offense was a mere “trial error” subject to a prejudice review. 

Justice Page dissents, saying that "knowingly violates" is an objective standard.  He attempts to support that assertion by citing to dicta in a footnote in a case that held that violation of an order for protection can't be the underlying crime on which to support a burglary conviction.  State v. Colvin, 645 N.W.2d 449 (Minn. 2002).  In the course of explaining that holding, the Court dropped in this footnote:

This is not to say that the state’s proof of each offense is complete upon showing evidence of the illegal entry because, as the court of appeals noted, as to the OFP violation, the state must also prove that a valid OFP existed, and that defendant knew of it.

 

 

 

Impoundment of Vehicle For Revoked License Registration, Revoked Plates, and No Insurance Lawful Where Driver Does Not Ask to Make Her Own Towing Arrangements

State v. Rohde, Minn.Ct.App., 12/2/2013.  Police stopped Ms. Rohde’s car on suspicion that she was carrying narcotics.  The officers stopped her after observing a signaling violation.  Ms. Rohde stopped on a two way residential street; the car did not impede traffic, violate any parking laws, or block access to any business or residence on the street.  However, the vehicle’s registration and license plates were revoked and the vehicle had no insurance.  The officers were apparently content with issuing her a citation for these infractions, at least, until they searched the car before having it towed.

Officers conducted an inventory search and found narcotics.  Ms. Rohde challenged the legitimacy of the impoundment and the inventory search.  The court of appeals concluded that under state law the car could not remain on the pubic roadway with revoked license plates and no insurance, so the impoundment was lawful.  Because the impoundment was lawful the inventory search exception permitted the officers to search the vehicle according to its standard procedures for doing so.

Ms. Rohde neglected to inquire if she might make her own arrangements to have the car towed.  The police, however, have no duty to remind her of her apparent right to do this.  See State v. Gauster, 752 N.W.2d 496 (Minn. 2008). 

Removing Package From Airport Sorting Conveyor is a Seizure. Dog Sniff of Package Required a Reasonable Articulable Suspicion

State v. Eichers, Minn.Ct.App., 12/2/2013.  Officer Meyer works in something called the Airport Police Narcotics Interdiction Unit out at the airport.  A package coming through the UPS sorting station caught his eye, initially because it was coming from Phoenix, next day air.  He pulled the package off the conveyor belt to get a better look at it.  This only aroused his suspicions even more.  He found that:

1. The package was shipped from Phoenix, AZ. This is a source city and state for narcotics. 2. Your affiant has found narcotics shipped through UPS from Phoenix many times in the past. 3. The package was sent via [A]ir [S]ervice. Drug couriers use the Air Service because the narcotics will be in the system a shorter time. Air service is very expensive and usually done only by companies. 4. The package appears to be sent from person to person, no company’s involved. All of these characteristics are consistent with previous packages that your affiant has found to contain illegal substances.

Officer Meyer then put the package in a room with twenty or so other packages and had his narcotics dog, Brio, sniff around.  Brio alerted only to this particular package.  With this information, the officer obtained a search warrant and then found a bunch of dope:  cocaine and meth.  When UPS delivered the package to Mr. Eichers, police arrested him.

Mr. Eicher moved to suppress evidence of the narcotics.  He made several arguments.  First, he said that the officer had seized the package by removing it from the airport conveyor belt for a brief visual inspection.  The court of appeals rejects this argument, relying in part on an Eighth Circuit opinion, United States v. Terriques, 319 F.3d 1051 (8th Cir. 2003), which held that merely removing a package from an airport conveyor belt for a brief visual inspection was not a “seizure.”  Mr. Eicher next argued that the officer did seize the package when he put the package in the room with all those other packages and had Brio sniff around.  Mr. Eicher wins this argument; this was a seizure that had to be supported by a reasonable articulable suspicion.

Mr. Eicher argued that this dog sniff was a search that required reasonable articulable suspicion.  Again, he wins this argument.  Alas, though, he does not prevail on his claim that the officer lacked this reasonable articulable suspicion for the reasons recited up above. 

Judge Ross concurred in the result, although he didn’t say that explicitly.  He did not believe that the federal constitution required Officer Meyer to have a reasonable articulable suspicion that the package contained contraband in order to put the package in the room with all those other packages in order to perform the dog sniffing test.  And, he didn’t believe that the officer needed a reasonable articulable suspicion to perform the dog sniffing test.  In fact, he didn’t think that whatever the dog did was a search at all, state court opinions to the contrary.  Covering the bases, he opined that even if whatever the dog did was, indeed, a search, then Mr. Eicher had no reasonable expectation of privacy in the package anyway, again, federal court opinions to the contrary.  In a post 9/11 world, Judge Ross thought that as soon as anyone let go of anything that may find its way onto or into an airplane the government can have its way with it.

Judge Hudson dissented.  The judge concluded that the officer did not have a reasonable articulable suspicion for the dog sniff of the package.  Sending a package next day air, and sending it from Phoenix amounted to nothing more than a hunch.

Look for the Supreme Court to take this case if anyone asks.

Staying One Sentence and Executing Another Concurrent Sentence, Where Two Sentences Are Permitted, Is No Abuse of Discretion

Wells v. State, Minn.Ct.App., 12/2/2013.  Mr. Wells believed that D.B. had sexually assaulted his daughter.  One morning, Mr. Wells went looking for D.B. over at E.B.’s place.  E.B. said he didn’t know where D.B. was – which apparently wasn’t true – which Mr. Wells didn’t believe so he took a baseball bat to E.B.

A jury convicted Mr. Wells of first degree burglary, first degree assault and second degree assault.  The top counts – burglary & assault one – called for 48 and 86 months in prison.  The trial court imposed these two sentences, but stayed execution of the 86 month sentence on the first degree assault, a departure.  The trial court justified the departure based on what’s known as the Trog, factors – State v. Trog, 323 N.W.2d 28 (Minn. 1982) - Mr. Wells’ age, lack of criminal record, his cooperation, his respect for the court, and the support of his family.

Mr. Wells argued on appeal that if there was a basis for departure on the assault conviction then that same basis required a departure on the burglary conviction.  That’s because, he said, a dispositional departure is supposed to be based on “the defendant as an individual and [focuses] on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243 (Minn. 1983).  The problem with this argument, however, is that the very year after Heywood, the court said that the trial court could impose a stayed sentence for one crime and a concurrent executed sentence for another crime (assuming that two sentences are permitted by statute or under the Guidelines).  State v. Petrin, 354 N.W.2d 578 (Minn.Ct.App. 1984).  The court also concluded that nothing in Trog required an all or nothing approach to a departure, in which case there was no abuse of discretion in this instance in staying one sentence and executing the other concurrent sentence.